TERMS AND CONDITIONS FOR TOBII AB (PUBL) MAXIMUM SEK 600,000,000 SENIOR SECURED CALLABLE FLOATING RATE BONDS 2019/2022 ISIN: SE

Transcription

1 Final version TERMS AND CONDITIONS FOR TOBII AB (PUBL) MAXIMUM SEK 600,000,000 SENIOR SECURED CALLABLE FLOATING RATE BONDS 2019/2022 ISIN: SE LEI: LD4XTJCBGS35 First Issue Date: 21 February 2019 The distribution of this document and the private placement of the Bonds in certain jurisdictions may be restricted by law. Persons into whose possession this document comes are required to inform themselves about, and to observe, such restrictions. The Bonds have not been and will not be registered under the U.S. Securities Act of 1933, as amended, and are subject to U.S. tax law requirements. The Bonds may not be offered, sold or delivered within the United States of America or to, or for the account or benefit of, U.S. persons.

2 TABLE OF CONTENTS 1. DEFINITIONS AND CONSTRUCTION THE AMOUNT OF THE BONDS AND UNDERTAKING TO MAKE PAYMENTS STATUS OF THE BONDS USE OF PROCEEDS SECURITY THE BONDS AND TRANSFERABILITY BONDS IN BOOK-ENTRY FORM RIGHT TO ACT ON BEHALF OF A HOLDER PAYMENTS IN RESPECT OF THE BONDS INTEREST REDEMPTION, REPURCHASE AND PREPAYMENT OF THE BONDS FINANCIAL UNDERTAKINGS SPECIAL UNDERTAKINGS CONDITIONS PRECEDENT TO THE FIRST ISSUE DATE PRE-DISBURSEMENT CONDITIONS PRECEDENT CONDITIONS SUBSEQUENT TERMINATION OF THE BONDS DISTRIBUTION OF PROCEEDS DECISIONS BY HOLDERS HOLDERS MEETING WRITTEN PROCEDURE AMENDMENTS AND WAIVERS APPOINTMENT AND REPLACEMENT OF THE AGENT APPOINTMENT AND REPLACEMENT OF THE ISSUING AGENT APPOINTMENT AND REPLACEMENT OF THE CSD NO DIRECT ACTIONS BY HOLDERS TIME-BAR NOTICES AND PRESS RELEASES LISTING FORCE MAJEURE AND LIMITATION OF LIABILITY GOVERNING LAW AND JURISDICTION... 48

3 TERMS AND CONDITIONS FOR TOBII AB (PUBL) MAXIMUM EUR 600,000,000 SENIOR SECURED CALLABLE FLOATING RATE BONDS 2019/2022 ISIN: SE DEFINITIONS AND CONSTRUCTION 1.1 Definitions In these terms and conditions (the Terms and Conditions ): Account Operator means a bank or other party duly authorised to operate as an account operator pursuant to the Central Securities Depositories and Financial Instruments Accounts Act and through which a Holder has opened a Securities Account in respect of its Bonds. Accounting Principles means the international financial reporting standards (IFRS) within the meaning of Regulation 1606/2002/EC (or as otherwise adopted or amended from time to time). Adjusted Nominal Amount means the total aggregate Nominal Amount of the Bonds outstanding at the relevant time less the Nominal Amount of all Bonds owned by the Issuer, a Group Company or an Affiliate of the Issuer or a Group Company, irrespective of whether such Person is directly registered as owner of such Bonds. Advance Purchase Agreement means (a) an advance or deferred purchase agreement if the agreement is in respect of the supply of assets or services and payment in the normal course of business with credit periods which are normal for the relevant type of project contracts, or (b) any other trade credit incurred in the ordinary course of business. Affiliate means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purpose of this definition, control when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing. Agent means the Holders agent and security agent under these Terms and Conditions and, if relevant, the other Finance Documents, from time to time; initially Intertrust (Sweden) AB (reg. no ), SE Stockholm, Sweden. Agent Agreement means the agreement entered into on or about the First Issue Date between the Issuer and the Agent, or any replacement agent agreement entered into after the First Issue Date between the Issuer and an Agent. 1

4 Available Cash means unpledged and freely available cash (including available but undrawn amounts under any credit facilities) and Cash and Cash Equivalents, held by the Restricted Group, calculated in accordance with the Accounting Principles. Bond means debt instruments (Sw. skuldförbindelser), each for the Nominal Amount and of the type set forth in Chapter 1, Section 3 of the Central Securities Depositories and Financial Instruments Accounts Act, issued by the Issuer under these Terms and Conditions, including any Subsequent Bonds. Bond Issue means the Initial Bond Issue and any Subsequent Bond Issue. Business Day means a day in Sweden other than a Sunday or other public holiday. Saturdays, Midsummer Eve (Sw. midsommarafton), Christmas Eve (Sw. julafton) and New Year s Eve (Sw. nyårsafton) shall for the purpose of this definition be deemed to be public holidays. Business Day Convention means the first following day that is a Business Day unless that day falls in the next calendar month, in which case that date will be the first preceding day that is a Business Day. Cash and Cash Equivalents means cash and cash equivalents in accordance with the Accounting Principles. Calculation Principles has the meaning set out in Clause Call Option Price means: (a) per cent. of the Nominal Amount if the call option is exercised on or after the First Call Date up to (but excluding) the date falling 24 months after the First Issue Date; (b) per cent. of the Nominal Amount if the call option is exercised on or after the date falling 24 months after the First Issue Date up to (but excluding) the date falling 30 months after the First Issue Date; or; (c) per cent. of the Nominal Amount if the call option is exercised on or after the date falling 30 months after the First Issue Date up to (but excluding) the Final Redemption Date. Central Securities Depositories and Financial Instruments Accounts Act means the Swedish Central Securities Depositories and Financial Instruments Accounts Act (Sw. lag (1998:1479) om värdepapperscentraler och kontoföring av finansiella instrument). Change of Control Event means the occurrence of an event or series of events whereby one or more Persons acting together, acquire control over the Issuer and where control means (i) acquiring or controlling, directly or indirectly, more than fifty (50.00) per cent. of the votes of the Issuer, or (ii) the right to, directly or indirectly, appoint or remove the whole or a majority of the directors of the board of directors of the Issuer. Compliance Certificate means a certificate, as set out in Schedule 1 attached hereto, signed by the Issuer certifying that so far as it is aware no Event of Default is continuing or, 2

5 if it is aware that such event is continuing, specifying the event and steps, if any, being taken to remedy it, and: (a) if provided in connection with a Financial Report being made available, the nomination of Other Material Assets if such Other Material Asset is a Subsidiary directly held by the Issuer (if any); or (b) if provided in connection with a Restricted Payment being made, which requires that the Distribution Test is met, that the Distribution Test is met, including calculations and figures in respect of the Distribution Test, calculated pro forma including the Restricted Payment; or (c) if provided in connection with the incurrence of a new Financial Indebtedness (including any Subsequent Bond Issue) or in connection with Clause 13.6 (Loans out), which requires that the Restricted Group Distribution Test and/or the Incurrence Test is met, that the Restricted Group Distribution Test and/or the Incurrence Test is met (as applicable), including calculations and figures in respect of the Restricted Group Distribution Test and/or the Incurrence Test (as applicable), calculated pro forma including the relevant Financial Indebtedness. Conditions Precedent to the First Issue Date means all actions and documents set out in Clause 14. Conditions Subsequent means all actions and documents set out in Clauses 16.1 and CSD means the Issuer s central securities depository and registrar in respect of the Bonds from time to time; initially Euroclear Sweden AB (reg. no ), P.O. Box 191, SE Stockholm, Sweden. De-listing Event means the situation where (i) the shares in the Issuer are not listed and admitted to trading on Nasdaq Stockholm or any other Regulated Market (as applicable), (ii) trading in the shares in the Issuer on the relevant market is suspended for a period of fifteen (15) consecutive Business Days, or (iii) once the Bonds are admitted to trading on the corporate bond list of Nasdaq Stockholm or any other Regulated Market, that the Bonds are no longer listed thereon (however, taking into account the rules and regulations (as amended from time to time) of Nasdaq Stockholm or any other Regulated Market, as applicable, and the CSD preventing trading in the Bonds in close connection with the redemption of the Bonds. Derivative Transaction has the meaning set forth in paragraph (e) of the definition Permitted Debt below. Deposit Account means the bank account of the Issuer, into which the net proceeds from a disposal in accordance with Clauses 11.5 (Special mandatory redemption upon divestment of Tobii Dynavox or Tobii Pro Material Assets) and 11.6 (Re-investment requirement or special voluntary redemption upon divestment of Other Material Assets) will be transferred 3

6 and which is pledged in favour of the Agent and the Holders (represented by the Agent) under the Deposit Account Pledge Agreement. Deposit Account Pledge Agreement means the pledge agreement entered into between the Issuer and the Agent in respect of a first priority pledge over the Deposit Account and all funds held on the Deposit Account from time to time, granted in favour of the Agent and the Holders (represented by the Agent). Distribution Test shall have the meaning set out in Clause Escrow Account means the bank account with account number , held by the Issuer with the Escrow Bank which has been pledged under the Escrow Account Pledge Agreement. Escrow Account Pledge Agreement means the pledge agreement entered into between the Issuer and the Agent before the First Issue Date in respect of a first priority pledge over the Escrow Account and all funds standing to the credit of the Escrow Account from time to time, granted in favour of the Agent and the Holders (represented by the Agent). Escrow Bank means Swedbank AB (publ), reg. no. ( ). Event of Default means an event or circumstance specified in Clause Existing Debt Facility means the bank loan facilities taken up by the Issuer from Swedbank AB (publ) in an aggregate amount of SEK 250,000,000, which shall, if any amount is outstanding under any facility, be repaid with proceeds from the Initial Bond Issue and thereby refinanced and terminated in full. Final Redemption Date means 21 February Finance Documents means these Terms and Conditions, the Agent Agreement, the Security Documents documenting the Transaction Security, and any other document designated as a Finance Document by the Agent and the Issuer. Financial Indebtedness means any indebtedness in respect of: (a) monies borrowed or raised, including Market Loans; (b) the amount of any liability in respect of any finance leases, to the extent the arrangement is or would have been treated as a finance lease in accordance with the Accounting Principles as applicable on the First Issue Date (a lease which in the accounts of the Group is treated as an asset and a corresponding liability); (c) receivables sold or discounted (other than on a non-recourse basis, provided that the requirements for de-recognition under the Accounting Principles are met); (d) any amount raised under any other transaction having the commercial effect of a borrowing (including forward sale or purchase arrangements), for the avoidance of doubt not including any earn-out incurred as a result of any Group Company acquiring another entity; 4

7 (e) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the mark to market value shall be taken into account); (f) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and (g) (without double counting) any guarantee or other assurance against financial loss in respect of a type referred to in the above paragraphs (a)-(f). Financial Report means the annual audited consolidated financial statements of the Group, the annual audited unconsolidated financial statements of the Issuer, the quarterly interim unaudited consolidated reports of the Group or the quarterly interim unaudited unconsolidated reports of the Issuer, which shall be prepared and made available according to paragraphs (a) and (b) of Clause (Financial reporting etcetera). First Call Date means the date falling eighteen (18) months after the First Issue Date or, to the extent such day is not a Business Day, the Business Day following from an application of the Business Day Convention. First Issue Date 21 February Force Majeure Event has the meaning set out in Clause Grace Period has the meaning set out in Clause 15.1 (a). Group means the Issuer and all the Subsidiaries from time to time (each a Group Company and all together the Group ). Group EBITDA means in respect of the Relevant Period, the consolidated profit of the Group from ordinary activities according to the latest Financial Report(s): (a) before deducting any amount of tax on profits, gains or income paid or payable by any Group Company; (b) before deducting any Net Finance Charges; (c) before taking into account any exceptional items which are not in line with the ordinary course of business; (d) not including any accrued interest owing to any Group Company; (e) before taking into account any unrealised gains or losses on any derivative instrument (other than any derivative instruments which is accounted for on a hedge account basis); (f) after adding back or deducting, as the case may be, the amount of any loss or gain against book value arising on a disposal of any asset (other than in the ordinary course of trading) and any loss or gain arising from an upward or downward revaluation of any asset; 5

8 (g) after deducting the amount of any profit (or adding back the amount of any loss) of any Group Company which is attributable to minority interests; (h) after adding back or deducting, as the case may be, the Group s share of the profits or losses of entities which are not part of the Group; (i) after adding back any amount attributable to the amortisation, depreciation or depletion of assets of Group Companies; and (j) after taking into account entities acquired or disposed of by the Group which shall be included or excluded (as applicable), pro forma. Group Net Interest Bearing Debt means the aggregate interest bearing debt (excluding any interest bearing debt borrowed from any Group Company) less Cash and Cash Equivalents of the Group according to the latest consolidated Financial Report, in accordance with the Accounting Principles. Holder means the Person who is registered on a Securities Account as direct registered owner (Sw. ägare) or nominee (Sw. förvaltare) with respect to a Bond. Holders Meeting means a meeting among the Holders held in accordance with Clause 20 (Holders Meeting). Initial Bond Issue means the issuance of Bonds on the First Issue Date. Intercompany Loan means any loans from the Issuer provided to any other Group Company (from time to time) whereby proceeds received under the Bond Issue are on-lent and which shall be pledged according to the Intercompany Loan Pledge Agreement provided that (i) each such loan is in the amount of not less than SEK 5,000,000 and the term of such loan is not shorter than 3 months and (ii) provided further that should the total amount of Intercompany Loans of less than SEK 5,000,000 each, exceed SEK 15,000,000 (the Threshold ), Intercompany Loans above the Threshold shall also be pledged according to the Intercompany Loan Pledge Agreement regardless of item (i) above. Intercompany Loan Pledge Agreement means the pledge agreement (if any) entered into between Issuer and a Group Company and the Agent (acting on its own behalf and in its capacity as agent and security agent representing the Holders) in respect of a first priority pledge over the Issuers present and future money claims under the Intercompany Loan(s) and as regards any future intercompany loan pledge agreement, in accordance with Clause (Additional pledges). In the event an Intercompany Loan is provided to a Group Company registered in a foreign jurisdiction and if the Intercompany Loan Pledge Agreement shall not be governed by Swedish law, such Intercompany Loan Pledge Agreement shall be entered into based on the Swedish template agreed upon as of the First Issue Date (subject to necessary amendments). Interest means the interest on the Bonds calculated in accordance with Clause 10.1 to Interest Payment Date means 21 February, 21 May, 21 August and 21 November each year or, to the extent such day is not a Business Day, the Business Day following from an 6

9 application of the Business Day Convention (with the first Interest Payment Date on 21 May 2019, following from an application of the Business Day Convention) and the last Interest Payment Date being the Final Redemption Date (or any final redemption date prior thereto). Interest Period means each period beginning on (but excluding) the First Issue Date or any Interest Payment Date and ending on (and including) the next succeeding Interest Payment Date (or a shorter period if relevant) and, in respect of Subsequent Bonds, each period beginning on (but excluding) the Interest Payment Date falling immediately prior to their issuance and ending on (and including) the next succeeding Interest Payment Date (or a shorter period if relevant). Interest Rate means a floating rate of STIBOR (three (3) months) plus 5.75 per cent., per annum. Issuer means Tobii AB (publ), (reg. no ), P.O. Box 743, SE , Danderyd, Sweden. Issuing Agent means Carnegie Investment Bank AB (publ), (reg. no ), SE , Stockholm, Sweden or another party replacing it, as Issuing Agent, in accordance with these Terms and Conditions. Issue Date means the First Issue Date and any subsequent date when issuance of Subsequent Bonds takes place. Listing Failure Event means the situation where the Bonds issued under the Initial Bond Issue have not been admitted to trading within sixty (60) calendar days from the First Issue Date on Nasdaq Stockholm or any other Regulated Market (although the Issuer will use its best efforts to list the Bonds issued in the Initial Bond Issue within thirty (30) calendar days from the First Issue Date). Market Loan means any loan or other indebtedness where an entity issues commercial paper, certificates, convertibles, subordinated debentures, bonds or any other debt securities (including, for the avoidance of doubt, medium term note programmes and other market funding programmes), provided in each case that such instruments and securities are or can be subject to trade on Nasdaq Stockholm or any other Regulated Market or unregulated recognised market place. Material Adverse Effect means a material adverse effect on (i) the business, financial condition or operations of the Group taken as a whole, (ii) the Issuer s ability or willingness to perform and comply with its payment and other undertakings under the Finance Documents or (iii) the validity or enforceability of the Finance Documents. Nasdaq Stockholm means the Regulated Market of Nasdaq Stockholm Aktiebolag, (reg. no ), SE Stockholm, Sweden. Net Finance Charges means, for the Relevant Period, the Group s consolidated finance charges (Sw. finansiella kostnader) according to the latest consolidated Financial Report, after deducting any interest payable for the relevant period to any Group Company and any interest income relating to Cash and Cash Equivalents investments of the Group. 7

10 Net Proceeds means the proceeds from the Initial Bond Issue or any Subsequent Bond Issue which, after deduction has been made for the Transaction Costs payable by the Issuer to the Issuing Agent for the services provided in relation to the placement and issuance of the Bonds, shall be transferred to the Issuer and used in accordance with Clause 4.3 (Use of proceeds). Nominal Amount has the meaning set out in Clause 2.1. Other Material Assets means (i) a Subsidiary of the Issuer or other assets contributing to more than five (5.00) per cent. of the higher of the Group EBITDA and the Restricted Group EBITDA (as applicable) according to the latest Financial Report or (ii) a Subsidiary of the Issuer or other assets representing more than five (5.00) per cent. of the Total Assets (for the avoidance of doubt, excluding any intra-group transactions). Person means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organisation, government, or any agency or political subdivision thereof, or any other entity, whether or not having a separate legal personality. Permitted Basket has the meaning set forth in paragraph (k) of the definition Permitted Debt. Permitted Debt means any Financial Indebtedness: (a) arising under the Initial Bond Issue (including Bonds issued under a Subsequent Bond Issue, if the Issuer meets the Incurrence Test, calculated pro forma including such issue); (b) incurred under the Existing Debt Facility until refinanced; (c) related to any agreements under which a Group Company leases office space (Sw. kontorshyresavtal) provided that such Financial Indebtedness is incurred in the ordinary course of such Group Company s business; (d) incurred by a Group Company, however subject to Clause 13.6 (Loans out). (e) arising under a derivative transaction entered into by a Group Company in connection with protection against or benefit from fluctuation in any rate or price where such exposure arises in the ordinary course of business or in respect of payments to be made under these Terms and Conditions or pursuant to cash management purposes (excluding for the avoidance of doubt any derivative transaction which in itself is entered into for investment or speculative purposes) ( Derivative Transaction ); (f) incurred in the ordinary course of business under Advance Purchase Agreements; (g) incurred by the Issuer if such Financial Indebtedness (i) ranks pari passu with, or is subordinated to, the obligations of the Issuer under these Terms and Conditions and (ii) has a final redemption date or, when applicable, early redemption dates or instalment dates which occur after the Final Redemption Date and (iii) always 8

11 provided that the Incurrence Test is met, (calculated pro forma including such incurrence); (h) incurred in connection with the redemption of the Bonds in order to fully refinance the Bonds and provided further that such Financial Indebtedness is subject to an escrow arrangement up until the redemption of the Bonds, for the purpose of securing, inter alia, the redemption of the Bonds; (i) incurred as a result of any Group Company acquiring another entity which holds Financial Indebtedness, provided that the Incurrence Test is met (calculated pro forma including the acquired entity s indebtedness in question, provided however that such indebtedness is refinanced no later than ninety (90) calendar days from the acquisition with Financial Indebtedness constituting Permitted Debt (if applicable)); (j) incurred by a Group Company under a Working Capital Facility; or (k) any other Financial Indebtedness not covered under paragraphs (a) to (j) above in an aggregate maximum amount of SEK 25,000,000 and incurred in the ordinary course of the Group s business (the Permitted Basket ). Permitted Security means any Security or guarantee: (a) provided under the Bonds (i.e. the Transaction Security); (b) provided under the Existing Debt Facility, until refinanced. (c) provided in relation to any agreement under which a Group Company leases office space (Sw. kontorshyresavtal) or other premises provided that such lease constitutes Permitted Debt; (d) provided in relation to a Derivative Transaction and not consisting of security interests in shares in any Group Company; (e) arising by operation of law or in the ordinary course of business (including collateral or retention of title arrangements in connection with Advance Purchase Agreements but, for the avoidance of doubt, not including guarantees or security in respect of any monies borrowed or raised, and including any right of netting or set-off over credit balances on bank accounts arising in the ordinary course of the banking arrangements of the Group); (f) provided in connection with a redemption of the Bonds in full and constituting a first priority pledge over a bank account in the name of the Issuer for the purpose of securing, inter alia, the redemption of the Bonds; (g) incurred as a result of any Group Company acquiring another entity which has provided security over any of its assets, provided that the debt secured with such security is Permitted Debt in accordance with paragraph (i) of the definition Permitted Debt above; and 9

12 (h) provided in relation to a Working Capital Facility (including during the Grace Period (if any)) and/or the Permitted Basket, however not constituting pledges over shares in the Pledged Group Companies directly or indirectly held subsidiaries. Pledged Group Companies means Tobii Dynavox AB, (reg. no ) ( Tobii Dynavox ), Tobii Pro AB, (reg. no ) ( Tobii Pro ) and Tobii Tech AB (reg. no ), together with shares (if and when applicable) in any future Subsidiary of the Issuer, provided that such Subsidiary constitutes an Other Material Asset and is directly held by the Issuer, (each a Pledged Group Company ). Pre-Disbursement Conditions Precedent means the conditions for disbursement of the Net Proceeds of the Initial Bond Issue from the Escrow Account to the Issuer, as set out in Clause 15 (Pre-Disbursement Conditions Precedent). Quotation Day means, in relation to (i) an Interest Period for which an Interest Rate is to be determined, two (2) Business Days before the immediately preceding Interest Payment Date (or in respect of the first Interest Period, two (2) Business Days before the Issue Date), or (ii) any other period for which an interest rate is to be determined, two (2) Business Days before the first day of that period. Record Date means the fifth (5th) Business Day prior to (i) an Interest Payment Date, (ii) a Redemption Date, (iii) a date on which a payment to the Holders is to be made under Clause 18 (Distribution of proceeds), or (iv) another relevant date, or in each case such other Business Day falling prior to a relevant date if generally applicable on the Swedish bond market. Redemption Date means the date on which the relevant Bonds are to be redeemed or repurchased in accordance with Clause 11 (Redemption, repurchase and prepayment of the Bonds). Regulated Market means any regulated market as defined in the Markets in Financial Instruments Directive 2014/65/EU (MiFID II), as amended. Relevant Period means each period of twelve (12) consecutive calendar months. Restricted Group means the Issuer and all the Subsidiaries from time to time other than Tobii Tech AB, (reg. no ) and its Subsidiaries from time to time ( Tobii Tech ), (each a Restricted Group Company ). Restricted Group Distribution Test and/or Incurrence Test shall have the meaning set out in Clause Restricted Group EBITDA means the figures for consolidated EBITDA of the Group (after deducting the EBITDA of Tobii Tech and its Subsidiaries) for the Relevant Period ending on the last day of the period covered by the most recent Financial Report and based on the segment reporting as set out therein. Restricted Group Net Interest Bearing Debt means the aggregate interest bearing debt (excluding any interest bearing debt borrowed from any Restricted Group Company) less 10

13 Cash and Cash Equivalents of the Restricted Group according to the latest consolidated Financial Report, in accordance with the Accounting Principles. Restricted Payment has the meaning set out in Clause Securities Account means the account for dematerialised securities maintained by the CSD pursuant to the Central Securities Depositories and Financial Instruments Accounts Act in which (i) an owner of such security is directly registered or (ii) an owner s holding of securities is registered in the name of a nominee. Security means a mortgage, charge, pledge, lien, security assignment or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect. Security Documents means the Share Pledge Agreements, any Intercompany Loan Pledge Agreement(s), the Deposit Account Pledge Agreement and the Escrow Account Pledge Agreement and any other pledge agreement entered into by a Group Company pursuant to these Terms and Conditions. SEK means the lawful currency of Sweden. Share Pledge Agreements means the share pledge agreements regarding a first priority pledge over all shares in Tobii Dynavox AB, (reg. no ), Tobii Pro AB, (reg. no ) and Tobii Tech AB (reg. no ), to be entered into between the Issuer and the Agent (acting in its capacity as agent and security agent representing the Holders), and any additional share pledge agreement to be entered into thereafter in accordance with Clause (Additional pledges). STIBOR means: (a) the applicable percentage rate per annum displayed on Nasdaq Stockholm s website for STIBOR fixing (or through another website replacing it) as of or around a.m. on the Quotation Day for the offering of deposits in SEK and for a period comparable to the relevant Interest Period; or (b) if no such rate as set out in paragraph (a) above is available for the relevant Interest Period, the rate calculated by the Issuing Agent (rounded upwards to four decimal places) which results from interpolating on a linear basis between (i) the applicable screen rate for the longest period (for which that screen rate is available) which is less than the Interest Period and (ii) the applicable screen rate for the shortest period (for which that screen rate is available) which exceeds that Interest Period, as of or around 11 a.m. on the Quotation Date; or (c) if no rate is available for the relevant Interest Period pursuant to paragraph (a) and/or (b) above, the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Issuing Agent at its request quoted by leading banks in the Stockholm interbank market reasonably selected by the Issuing Agent, for deposits of SEK 100,000,000 for the relevant period; or 11

14 (d) if no quotation is available pursuant to paragraph (c) above, the interest rate which according to the reasonable assessment of the Issuing Agent best reflects the interest rate for deposits in SEK offered in the Stockholm interbank market for the relevant period. Subsequent Bond means any Bond issued in a Subsequent Bond Issue. Subsequent Bond Issue has the meaning set out in Clause 2.5. Subsidiary means, in relation to any entity, any other legal entity (whether incorporated or not) in respect of which such entity directly or indirectly, (i) owns shares or ownership rights representing more than fifty (50.00) per cent. of the total number of votes held by the owners, (ii) otherwise controls more than fifty (50.00) per cent. of the total number of votes held by the owners, (iii) has the power to appoint and remove all, or the majority of, the members of the board of directors or other governing body or (iv) exercises control as determined in accordance with the Accounting Principles. Tobii Dynavox or Tobii Pro Material Assets means (i) Tobii Dynavox or Tobii Pro or a Subsidiary of Tobii Dynavox or Tobii Pro or other assets of these entities contributing to twenty-five (25.00) per cent. or more of the higher of the Group EBITDA and the Restricted Group EBITDA (as applicable) according to the latest Financial Report or (ii) Tobii Dynavox or Tobii Pro or a Subsidiary of these entities or other assets representing twentyfive (25.00) per cent. or more of the Total Assets (for the avoidance of doubt, excluding any intra-group transactions). Total Assets means the aggregate book value of the Group s total assets on a consolidated basis according to the latest Financial Report. Transaction Costs means all fees, costs and expenses incurred by a Group Company in connection with (i) the Initial Bond Issue or a Subsequent Bond Issue and (ii) the listing of the Bonds. Transaction Security means the transaction Security to be provided under the Security Documents on the First Issue Date and any additional transaction Security to be provided thereafter in accordance with Clause (Additional pledges). Unrestricted Group means the Group Companies not being a Restricted Group Company (each an Unrestricted Group Company ). Working Capital Facility means one or more credit facilities for working capital purposes, in an aggregate amount not at any time exceeding SEK 50,000,000. Written Procedure means the written or electronic procedure for decision making among the Holders in accordance with Clause 21 (Written Procedure). 12

15 1.2 Construction Unless a contrary indication appears, any reference in these Terms and Conditions to: (a) assets includes present and future properties, revenues and rights of every description; (b) any agreement or instrument is a reference to that agreement or instrument as supplemented, amended, novated, extended, restated or replaced from time to time; (c) a regulation includes any regulation, rule or official directive (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency or department or regulatory, self-regulatory or other authority or organisation; (d) an Event of Default is continuing if it has not been remedied or waived; (e) a provision of law is a reference to that provision as amended or re-enacted; and (f) a time of day is a reference to Stockholm time When ascertaining whether a limit or threshold specified in SEK has been attained or broken, an amount in another currency shall be counted on the basis of the rate of exchange for such currency against SEK for the previous Business Day, as published by the Swedish Central Bank (Sw. Riksbanken) on its website ( If no such rate is available, the most recently published rate shall be used instead A notice shall be deemed to be sent by way of press release if it is made available to the public within Sweden promptly and in a non-discriminatory manner No delay or omission of the Agent or of any Holder to exercise any right or remedy under these Terms and Conditions shall impair or operate as a waiver of any such right or remedy Other than as set out in this Clause 1.2.5, until the process with the Competition and Markets Authority in England (the CMA ) is final and completed with regards to the Group s acquisition of Smartbox Assistive Technology Ltd. UK, Smartbox Assistive Technology Inc. US and Sensory Software International Ltd. UK (jointly Smartbox ) (the CMA Process ), all references, terms and provisions in these Terms and Conditions that include Smartbox (directly or indirectly) shall be disregarded, meaning that such references, terms and provisions shall not be taken into account in any way in relation to Smartbox, regardless of what is otherwise stipulated in these Terms and Conditions. Following the completion of the CMA Process, Smartbox shall be included in the applicable references, terms and provisions, to the extent applicable and based on the outcome from the CMA (as and if applicable). Any divestments or disposals made in relation to Smartbox due to any decision, resolution or other instruction by or from the CMA will not trigger Clauses 11.5 (Special mandatory redemption upon divestment of Tobii Dynavox or Tobii Pro Material Assets) and 11.6 (Re-investment requirement or special voluntary redemption upon divestment of Other Material Assets). Moreover, Smartbox may, following completion of the CMA Process be integrated into the business (in part or in full) and be subject to internal restructuring within 13

16 the Group (the Smartbox Restructuring ). Any steps taken in connection with the Smartbox Restructuring shall not trigger Clauses 11.5 and 11.6 as mentioned above. 2. THE AMOUNT OF THE BONDS AND UNDERTAKING TO MAKE PAYMENTS 2.1 The aggregate amount of the bond loan will be an amount of up to SEK 600,000,000 which will be represented by Bonds, each of a nominal amount of SEK 1,250,000 or full multiples thereof (the Nominal Amount ). The total nominal amount of the Bonds issued in the Initial Bond Issue is SEK 300,000, The ISIN for the Bonds is SE All Bonds issued in the Initial Bond Issue are issued on a fully paid basis at an issue price of one hundred (100.00) per cent. of the Nominal Amount. 2.4 The minimum permissible investment in connection with the Initial Bond Issue is SEK 1,250,000 and integral multiples thereof. 2.5 The Issuer may at one or more occasions after the First Issue Date issue Subsequent Bonds under these Terms and Conditions (each such issue, a Subsequent Bond Issue ), until the total amount under such Subsequent Bond Issue(s) and the Initial Bond Issue equals SEK 600,000,000, always provided that no Event of Default is continuing or would result from such issue and that the Incurrence Test (calculated pro forma including the Subsequent Bond Issue) is met. 2.6 Subsequent Bonds shall be issued subject to the Finance Documents and, for the avoidance of doubt, the ISIN, the Interest Rate, the Nominal Amount and the Final Redemption Date applicable to the Bonds issued in the Initial Bond Issue shall also apply to Subsequent Bonds. The price of Subsequent Bonds may be set at the Nominal Amount, at a discount or at a higher price than the Nominal Amount. 2.7 The Issuer undertakes to repay the Bonds, to pay Interest and to otherwise act in accordance and comply with these Terms and Conditions. 2.8 The Bonds are denominated in SEK and each Bond is constituted by these Terms and Conditions. 2.9 By subscribing for Bonds, each initial Holder agrees that the Bonds shall benefit from and be subject to the Finance Documents and by acquiring Bonds each subsequent Holder confirms the Finance Documents. 3. STATUS OF THE BONDS The Bonds constitute direct, general, unconditional, unsubordinated and secured obligations of the Issuer and shall at all times rank at least pari passu with all direct, general, unconditional, unsubordinated and unsecured obligations of the Issuer and without any preference among them. The Bonds are secured by the Transaction Security. 14

17 4. USE OF PROCEEDS 4.1 The Issuer shall establish the Escrow Account prior to the First Issue Date and make sure that the Conditions Precedent to the First Issue Date is met in accordance with Clause 14. As soon as possible on or about the First Issue Date, the Issuing Agent shall transfer the Net Proceeds from the Initial Bond Issue to the Escrow Account. 4.2 For the purpose of securing that the Pre-Disbursement Conditions Precedent have been fulfilled prior to any disbursement of the Net Proceeds, the Escrow Account will be pledged in favour of the Agent and the Holders (represented by the Agent) in accordance with the Escrow Account Pledge Agreement. The pledge over the Escrow Account shall be immediately released when the Pre-Disbursement Conditions Precedent have been fulfilled and repayment of the Existing Debt Facility in full have been made. The Agent shall instruct the Escrow Bank to transfer funds for the repayment in full of the Existing Debt Facility, and thereafter the Agent shall immediately release the pledge over the Escrow Account in accordance with the provisions of the Escrow Account Pledge Agreement. 4.3 The Net Proceeds standing to the credit of the Escrow Account shall be used by the Issuer towards: (a) (b) (c) refinancing of the Group s completed acquisitions including refinancing of the Existing Debt Facility in full; financing of any additional acquisitions and; general corporate purposes. The Net Proceeds necessary for repayment in full of the Existing Debt Facility shall be transferred directly by the Agent from the Escrow Account in accordance with Clause 4.2 above to the account designated for repayment of the Existing Debt Facility held by the lending bank. 4.4 The net proceeds from any Subsequent Bond Issue, after deduction has been made for the Transaction Costs payable by the Issuer, shall be used for the purposes set out in Clause 4.3 paragraphs (b) and (c) above. 5. SECURITY 5.1 As continuing security for the due and punctual fulfilment of the Issuer s obligations under the Finance Documents, the Issuer shall and shall procure that any other relevant Group Company (if applicable), pledges to the Agent and the Holders (as represented by the Agent), as first ranking security: (a) all shares in Tobii Dynavox AB (reg. no ), Tobii Pro AB (reg. no ) and Tobii Tech AB (reg. no ), in accordance with the Share Pledge Agreements, and pursuant to Clause any other shares (if and when applicable) in any future Subsidiary of the Issuer, provided that such Subsidiary constitutes an Other Material Asset and is directly held by the Issuer; 15

18 (b) (c) (d) present and future money claims under any Intercompany Loan(s) in accordance with the Intercompany Loan Pledge Agreement(s); the Deposit Account and all funds standing to the account (from time to time) in accordance with the Deposit Account Pledge Agreement; and the Escrow Account and all funds standing to the account (from time to time) in accordance with the Escrow Account Pledge Agreement. 5.2 The Issuer shall ensure that the Security Documents and all documents to be delivered thereunder are duly executed in favour of the Agent and the Holders (as represented by the Agent) and that such documents are legally valid, perfected, enforceable and in full force and effect according to their terms. The Issuer shall execute and/or procure the execution of such further documentation as the Agent may reasonably require in order for the Holders and the Agent to at all times maintain the security position and guarantee position envisaged under the Security Documents. 5.3 The Agent shall hold the Transaction Security on behalf of itself and the Holders in accordance with the Finance Documents. 5.4 Except if otherwise decided by the Holders according to the procedures set out in Clauses 19 (Decisions by Holders), 20 (Holders Meeting) or 21 (Written Procedure), the Agent is, without first having to obtain the Holders consent, entitled to enter into binding agreements with the Group Companies or third parties if it is, in the Agent s sole discretion, necessary for the purpose of establishing, maintaining, altering, releasing or enforcing the Transaction Security or for the purpose of settling the various Holders relative rights to the Transaction Security. The Agent is entitled to take all measures available to it according to the Security Documents. 5.5 If the Bonds are declared due and payable according to Clause 17 (Termination of the Bonds), or following the Final Redemption Date, the Agent is, without first having to obtain the Holders consent, entitled to enforce the Transaction Security in such manner and under such conditions that the Agent finds acceptable (in accordance with the terms of the Security Documents). 5.6 If a Holders Meeting has been convened, or a Written Procedure has been instigated, to decide on the termination of the Bonds and/or the enforcement of all or any of the Transaction Security, the Agent is obligated to take actions in accordance with the Holders decision regarding the Transaction Security. However, if the Bonds are not terminated due to that the cause for termination has ceased or due to any other circumstance mentioned in these Terms and Conditions, the Agent shall not enforce the Transaction Security. If the Holders, without any prior initiative from the Agent or the Issuer, have made a decision regarding termination of the Bonds and enforcement of the Transaction Security in accordance with the procedures set out in Clauses 19 (Decisions by Holders), 20 (Holders Meeting) or 21 (Written Procedure), the Agent shall promptly declare the Bonds terminated and enforce the Transaction Security in accordance with the terms of the Security Documents and in accordance with the terms of the Terms and Conditions. The Agent is 16

19 however not liable to take action if the Agent considers cause for termination and/or acceleration not to be at hand, unless the instructing Holders in writing commit to holding the Agent indemnified and, at the Agent s own discretion, grant sufficient security for the obligation. 5.7 Funds that the Agent receives (directly or indirectly) on behalf of the Holders in connection with the termination of the Bonds or the enforcement of any or all of the Transaction Security constitute escrow funds (Sw. redovisningsmedel) according to the Escrow Funds Act (Sw. lag (1944:181) om redovisningsmedel) and must be held on a separate interestbearing account on behalf of the Holders and any other interested party. The Agent shall promptly arrange for payments to be made to the Holders in such case. The Agent shall arrange for payments of such funds in accordance with Clause 18 (Distribution of proceeds) as soon as reasonably practicable. If the Agent deems it appropriate, it may, in accordance with Clause 5.8, instruct the CSD to arrange for payment to the Holders. 5.8 For the purpose of distributing any funds originating from the enforcement of any Transaction Security, the Issuer irrevocably authorises and empowers the Agent to act in the name of the Issuer, and on behalf of the Issuer, to instruct the CSD to arrange for payment to the Holders in accordance with Clause 5.7. To the extent permissible by law, the powers set out in this Clause 5.8 are irrevocable and shall be valid for as long as any Bonds remain outstanding. The Issuer shall immediately upon request by the Agent provide the Agent with any such documents, including a written power of attorney (in form and substance to the Agent s satisfaction, acting reasonably), which the Agent deems necessary for the purpose of carrying out its duties under Clause 5.7 (including as required by the CSD in order for the CSD to accept such payment instructions). In addition, the Issuer shall, upon the Agent s request, provide the Agent with a written power of attorney empowering the Agent to change the bank account registered with the CSD to a bank account in the name of the Agent and to instruct the CSD to pay out funds originating from an enforcement in accordance with Clause 5.7 to the Holders through the CSD. 6. THE BONDS AND TRANSFERABILITY 6.1 Each Holder is bound by these Terms and Conditions without there being any further actions required to be taken or formalities to be complied with. 6.2 The Bonds are freely transferable. All Bond transfers are subject to these Terms and Conditions and these Terms and Conditions are automatically applicable in relation to all Bond transferees upon completed transfer. 6.3 Upon a transfer of Bonds, any rights and obligations under the Finance Documents relating to such Bonds are automatically transferred to the transferee. 6.4 No action is being taken in any jurisdiction that would or is intended to permit a public offering of the Bonds or the possession, circulation or distribution of any document or other material relating to the Issuer or the Bonds in any jurisdiction other than Sweden, where action for that purpose is required. Each Holder must inform itself about, and observe, any applicable restrictions to the transfer of material relating to the Issuer or the Bonds, (due to, 17

20 e.g., its nationality, its residency, its registered address or its place(s) of business). Each Holder must ensure compliance with such restrictions at its own cost and expense. 6.5 For the avoidance of doubt and notwithstanding the above, a Holder which allegedly has purchased Bonds in contradiction to mandatory restrictions applicable may nevertheless utilise its voting rights under these Terms and Conditions and shall be entitled to exercise its full rights as a Holder hereunder in each case until such allegations have been resolved. 7. BONDS IN BOOK-ENTRY FORM 7.1 The Bonds will be registered for the Holders on their respective Securities Accounts and no physical Bonds will be issued. Accordingly, the Bonds will be registered in accordance with the Central Securities Depositories and Financial Instruments Accounts Act. Registration requests relating to the Bonds shall be directed to an Account Operator. 7.2 Those who according to assignment, security, the provisions of the Swedish Children and Parents Code (Sw. föräldrabalken (1949:381)), conditions of will or deed of gift or otherwise have acquired a right to receive payments in respect of a Bond shall register their entitlements to receive payment in accordance with the Central Securities Depositories and Financial Instruments Accounts Act. 7.3 The Issuer (and the Agent when permitted under the CSD s applicable regulations) shall be entitled to obtain information from the debt register (Sw. skuldbok) kept by the CSD in respect of the Bonds. At the request of the Agent, the Issuer shall promptly obtain such information and provide it to the Agent. 7.4 For the purpose of or in connection with any Holders Meeting or any Written Procedure, the Issuing Agent shall be entitled to obtain information from the debt register kept by the CSD in respect of the Bonds. If the Agent does not otherwise obtain information from such debt register as contemplated under the Finance Documents, the Issuing Agent shall at the request of the Agent obtain information from the debt register and provide it to the Agent. 7.5 The Issuer shall issue any necessary power of attorney to such persons employed by the Agent, as notified by the Agent, in order for such individuals to independently obtain information directly from the debt register kept by the CSD in respect of the Bonds. The Issuer may not revoke any such power of attorney unless directed by the Agent or unless consent thereto is given by the Holders. 7.6 At the request of the Agent, the Issuer shall promptly instruct the Issuing Agent to obtain information from the debt register kept by the CSD in respect of the Bonds and provide it to the Agent. 7.7 The Issuer (and the Agent when permitted under the CSD s applicable regulations) may use the information referred to in Clause 7.3 only for the purposes of carrying out their duties and exercising their rights in accordance with the Finance Documents and shall not disclose such information to any Holder or third party unless necessary for such purposes. 18